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Law, Religion, and Kissing Your Sister

This paper was written as a commentary chapter for a forthcoming book titled "Matters of Faith: Religious Experience and Legal Response" (Austin Sarat, ed.). The book is based on a conference held at the University of Alabama School of Law in October 2011. Five papers were presented at that conference: on the principal issues discussed, the result was a stark 2-2 tie (with the fifth paper, by a historian, valuable in itself but not taking sides on the disputed matters.) Given the normative orientation of legal scholars, the normal course of business would be to say who is right. But this comment instead focuses on a broader but perennial question: the nature of "tie games" in law and legal scholarship in the area of law and religion.

Church-state conflicts, given the contested and incommensurable issues they involve, are particularly prone to end in ties. That fact has recently encouraged some scholars (myself included) to focus more on the "tragic" nature of church-state law, and the moral remainders that are inevitable in this field, than on the "comic" search for a single value or approach that might resolve some of these disputes once and for all. From that perspective, rather than try to "break the tie," there may be more value in considering why church-state issues are prone to end in ties, and what if anything we ought to do or feel about it.

In this short paper, I first examine the principal papers and oral discussion at the Matters of Faith conference, which dealt primarily with two issues - the Hosanna-Tabor litigation and the ministerial exception, and the question of whether government may strip tax-exempt status and other subsidies or privileges from churches that engage in "invidious discrimination" - and argue that they end clearly in a deadlock. I then discuss several common methods employed by scholars in the field to resolve these deadlocks, and argue that they are all unsuccessful. The tie remains. Finally, for purposes of analogy, I address another arena in which ties, and the breaking of ties, is common: sports. The similarities and differences between sports and law offer a useful way of thinking about the deadlock in law and religion. I argue that in law and religion, unlike in sports, tiebreaking mechanisms are both necessary and impossible. I conclude with some thoughts on what we might do to at least reduce the moral remainders inherent in church-state conflict, and find ways of keeping the participants involved in the law "game" without creating or further alienating illiberal groups within society. The paper is still in draft, and comments are welcome.